Helping You Choose Between A Will And A Trust
Many individuals feel perplexed by the purpose and function of a will versus a trust. I often hear clients wonder which tool fits their needs or if they require both to navigate the complexities of estate planning.
The choices you have made throughout your life are unique; therefore, your estate plan should reflect that individuality. At The Law Offices of M. Kent Olsen, P.C., I efficiently and affordably help you make decisions that secure the best possible outcome for your family. Contact me today to learn more about your Colorado trust options and estate planning in Denver.
Key Differences: Wills Vs. Trusts In Colorado
While both documents dictate how you distribute your assets, they operate on different timelines, offer varying levels of control, and involve distinct legal processes.
The purpose of a will
A will is a legal document that remains “ambulatory,” meaning it has no legal effect until your death. It outlines how you wish to distribute your property and nominates a personal representative to manage the estate. As long as you maintain mental capacity, you can revise or revoke your will at any time.
In Colorado, if you own real estate in your individual name or hold personal property exceeding the statutory “small estate” threshold ($86,000 for deaths in 2025; adjusted annually for inflation), the probate court must generally admit your will to legally transfer title to your heirs. However, for estates consisting only of personal property below this limit, heirs may use a Small Estate Affidavit (Form JDF 999) to collect assets without court involvement.
The function of a trust
A trust is a private contractual arrangement that becomes legally operational upon execution, but it only controls “funded” assets. This means you have changed the title of the property from your individual name to the name of the trust. To avoid probate, you must also ensure that you properly title any property you acquire in the future in the trust’s name.
The structure of a trust determines its flexibility:
- Revocable living trusts: These allow you to maintain control and alter or revoke the terms during your lifetime.
- Irrevocable trusts: Attorneys typically use these for specific goals, such as estate tax planning. While they can offer asset protection, Colorado’s Uniform Voidable Transactions Act (C.R.S. § 38-8-101 et seq.) prevents people from using such trusts to hinder, delay, or defraud existing creditors.
While a trust often serves as the primary vehicle for your estate, most plans still require a secondary document to address any remaining property.
The “Pour-Over” Will: Your Safety Net
In a Colorado estate plan, lawyers generally draft a “pour-over” will to accompany your trust. This document acts as a safety net. If you die holding property in your individual name that you never transferred to the trust, the pour-over will direct the probate court to “pour” those assets into your trust for final distribution.
Note: Unlike assets you already hold in a trust, assets passing through a pour-over will must typically go through a probate proceeding before the personal representative can add them to the trust. Call my office to discuss which estate planning tools fit your needs.
Select An Experienced Parker Estate Planning Lawyer
Many clients believe they need a trust to avoid the probate process upon death. However, Colorado is fortunate enough to have a relatively simple and straightforward probate administration process. Additionally, the opening of a probate estate may also make the administration of your property more efficient upon your death, as there are more specific and shorter deadlines under which creditors must assert claims in order to be paid.
Accordingly, it is extremely important to discuss your situation with an experienced estate planning attorney to determine what type of documents best fit your needs. As an experienced, compassionate attorney, I can help you determine which plan of action will support a successful future for you and your loved ones.
Frequently Asked Questions
Below are answers to common questions about managing your estate and navigating the probate process under Colorado law.
Does a trust avoid probate in Colorado?
Yes. Assets you properly title in the name of a revocable living trust at the time of death pass directly to beneficiaries without court involvement.
While Colorado follows the Uniform Probate Code (UPC) to simplify the process, a trust offers different advantages. It allows your family to access assets quickly and maintains privacy, as you do not file trusts with the court, where they would become part of the public record.
When is probate mandatory in Colorado?
For residents passing away in 2026, the court generally requires formal or informal probate if:
- The decedent owned any real estate titled solely in their name; Or
- The total value of all other personal property (bank accounts, vehicles, etc.) exceeds $82,000.
If the estate falls below these markers and contains no real property, your heirs may use a Small Estate Affidavit under C.R.S. § 15-12-1201 to collect assets without a court case.
Can I change my will after I sign it?
Yes. You may amend your will by drafting a codicil or revoke it by creating a new will at any time, provided you have the requisite testamentary capacity. Under C.R.S. § 15-11-501, any adult 18 or older who understands their assets and their heirs may change their estate plan.
What is the best age to start estate planning?
Any adult with assets or children should have a plan. We help young families in Parker and Arvada with guardianship designations and work with seniors in Denver on wealth preservation and reducing the administrative burden on survivors. Call me to talk about your estate plan.
Contact The Law Offices of M. Kent Olsen, P.C.
I maintain my main office in an accessible part of Denver, with satellite offices in Arvada and Parker. To speak with a knowledgeable Denver estate and trust lawyer, call 720-644-1605 or email me to schedule your initial consultation.
